In this Article, the author has given a detailed analysis of POCSO Act. The author is associated to the National Law University, Orissa.

INTRODUCTION

While sexual offences are grievous in nature in themselves but the ones committed against children are considered even more heinous as children are among the most vulnerable & innocent victims of such crimes. According to a report in 2007 of the Women And Child Development Ministry, 53.2% of the children have faced more than one form of sexual abuse of which 52.94% were boys. Further, the National Crime Reports Bureau released a report in 2018 stated that the number of reported rape cases was 21,605.

The worst part is that the number of reported cases is less than the number of offences as the abusers generally are people who knew the child at personal capacity and were in position of trust and responsibility. The Ministry of Women and Child Development was a driving force behind the passage of the POCSO Act, which was designed to confront the egregious offences of carnal nature and sexual exploitation of minors via judicial safeguards that were comparatively less vague and more rigorous than the provisions of the Indian Penal Code in consonance with the international guidelines of WHO.

This was done with the objective of constructively combating such activities. In a parallel vein, the Juvenile Justice Act was passed into law in order to shield minors from crimes like “sexual assault, sexual harassment, and pornography” and to provide for the institution of Special Courts to conduct special proceedings for crimes of such manner as well as connected concerns and occurrences.

OBJECTIVE SOUGHT TO BE ACHIEVED BY POCSO

POCSO was implemented in 2012 to fulfil purpose of safeguarding minors under 18 from crimes which are sexual in nature by implementing optimistic initiatives for the dispensation of expeditious justice and increase accountability concerning such subjects.  Before establishment of this statute, there was the absence of any special law which could be entirely designated for the offenses perpetrated against minors. Instead, the offenses were recorded under the Indian Penal Code, 1860, or the Criminal Procedure Code.

In addition, the IPC was quiet on a number of offenses and did not contain any applicable provisions for such offenses; as a result, those who committed the offenses were given a free pass, and there was lack of implementation or even mandating punishment upon such perpetrators.   Because the regulations were not in consonance with present times, it necessitated the establishment of a new judicial procedure for minors.

This culminated to the passage of the Protection Of Children from Sexual Offences Act, and there was a new inclusion to Article 15 clause (3) asserting upon the Government’s authority to enact specific statutory requirement for protection of minors. Both of these modifications were assessed to be crucial.

Some of the eminent features of POCSO which delves into concerns not covered by other legislation are –

1. The Provisions of the Act are gender neutral keeping in mind, the child’s well-being and the protection of their interest as the subject of utmost concern, as well as the promotion of the children’s optimal physical, psychological, cognitive, and emotional wellbeing. This goes against the rules under Indian Penal Code, that solely protected women and made no distinction between an adult and a child. Because of this, the necessity of maintaining the gender neutrality of the statute arose since several young males are also subjected to crimes of sexual nature.
2. It furthermore describes the various types of offences which are sexual nature, including both penetrative and non-penetrative sexual intercourse, in addition to sexual harassment and pornography. Additionally, it perceives a sexual assault to be “aggravated” in specific conditions, in instances where the aggrieved minor is psychologically unwell or if the violence is undertaken through an individual vested with confidence or authority, including a close relative, law enforcement officer, educator, or health professional. These are all examples of such situations.  The sections 3 through 12 of this act concern with sexual offenses perpetrated against minors.
3. Persons who trade minors with the intention of sexual exploitation shall also be subjected to punishment within the clauses of the Act that relate to abetment. The Legislation calls for severe punishments that increase in harshness depending on the magnitude of the crime, with the most extreme penalty being a fee and a period of incarceration that lasts for lifetime.
4. In section 3 of the Act, the provisions delve in depth and definition of child pornography and describes it as “any graphic depiction of sexually explicit conduct involving a child.” This definition encompasses any pictures, multimedia, electronic or machine generated impression that is indiscernible from a real minor, in addition to any impression that was produced, tailored, or altered, but appears to portray a minor.
5. Provisions of the statute allow or make way for the formation of Special Courts for adjudication of crimes committed under the Act. These tribunals are required to incorporate “child-friendly” reporting process, investigation, inquiry, and trial processes. This has been dealt with comprehensively in Section 6 and 7 of the Act.
6. This Legislation operates on the basic premise of “guilty until proven innocent”, instead of the ubiquitous principle of “innocent until proven guilty,” and therefore to prevent the misuse of legal system, we have safeguards in place made for prevention of filing of fictitious allegations or misleading evidence with the purpose to cause harm. The responsibility of substantiation of truth is placed upon the individual who is being suspected. “
7. This Act makes it necessary for the recording of physical misconduct against children which is of sexual nature and requires the authorities to file a First Information Report in cases of all types of juvenile exploitation. In fact, the testimony of the minor can be taken down in their home or at any other location of their choosing; nevertheless, it is strongly recommended that the testimony be taken down by a police official who is a woman or an official with a grade that is not lower than that of “sub-inspector”.
8. Further non reporting of such offences have been penalized. It mandates that anybody who thinks or is aware of a crime of sexual nature being perpetrated against a minor must immediately disclose their suspicions or information to either the regional cops or the “Special Juvenile Police Unit”. Should any individual neglect compliance, they will face the possibility of either a penalty or incarceration for a period of six months.
9. There is no time limit for reporting abuse. A victim can report an offence at any time, even several years after the abuse has been committed. As a result, institutions in our country that work with minors are unable to utilize the excuse of insufficient timeframe to reject allegations of juvenile sexually exploitation that have been lodged against its staff members.
10. Section 23 of the POCSO Legislation makes it illegal to disclose the complainant’s identification in any type of social platform, with the exception of situations in which the special courts that were constituted as a result of the law give their permission to do so. This ensures that their identification can remain private.  Infractions of this provision may result in the imposition of penalties outlined in the law.

EFFECTIVENESS AND SHORTCOMINGS OF THE ACT

While analysing the implications and the implementation of the Act, there are 3 broad impacts under which we can effectively scrutinize its effectiveness.

I.                 Easement of the Legislative Process

There are various relaxations offered to children for recording their evidences and providing their statement throughout the trial and investigation procedure. Moreover, special courts ensure utmost security of the child. However, some   regulations are susceptible to exploitation, such as non-recognition of consensual intercourse between an adult and a minor or among minors.

No clause specifies the documentation needed to establish the victim’s or child’s age. In order to determine the age of such juvenile assailants, the court uses Section 12 of the Juvenile Justice Act. There have been judgements clearly specifying that documentation like “birth certificate, matriculation certificate, school certificate, and bone ossification test” are some of the records that are regarded as valid evidence. The skeletal endochondral test also provides a reasonable estimate of the assailant’s age. The Legislation needs to specify the documents that are required to verify the age of the sufferer.

II.              Pace of Delivery of Justice

While the Act provides for speedy delivery of justice to the victim within 1 year and recording of the child’s statement/testimony within 30 days. Such laws have been routinely disregarded or ignored by courts due to the overburdening of cases.

Lawyers often fight for postponements due to extraneous factors, and if the sufferer is summoned to trial again six to seven months following the event, their memory of the particular specifics of the incident may get blurred as a result of the postponement. Despite temporary reimbursement being interpreted in a restricted manner, individuals should understand that it includes the minor assailant’s recovery necessities.

Because of the Protection Of Children from Sexual Offences Act, the opposition is permitted to raise queries, but they must do so in a respectful manner and solely through the court. Even if this safeguards the sufferer from hounding during the court hearing, the connection between the complainant and the prosecuting attorney must be properly described so that the complainant is capable of responding to the queries or describing the circumstance with the litigator for additional examination or tribulation and refrains from silencing from providing the details of the incident. This will guarantee that the complainant is not accosted during the court hearing.

III.           Administrative Laxation

POCSO Act has witnessed many administrative pitfalls during implementation. Owing to prolongation of time required in filing of First Information Report and pursuing the “Medico-Legal Case” the authorities were unable to satisfy the statute of limitations notwithstanding numerous attempts on their part. The exam is frequently skipped because people have erroneous ideas about what it entails and how it can affect the sufferer’s wellbeing.

Greater responsibility must be undertaken by health professionals while they are performing the test on the suffering minor because the environment around them inside the facilities is usually very unpleasant and hostile and they should be treated with utmost softness and patience. The police should also abide by the same etiquette during the investigation.

IV.            Narrowly Construed Cases

There have been certain noteworthy instances of the Supreme Court, the High Courts and even the POCSO courts of interpreting the statute in a detrimental manner to the prejudice of the victim and the society at large. Some of the cases are –

1. Through the judgement in “State v. Aas Mohammad 2017 SCC OnLine Del 7750” it was ascertained that the victim in question who was female child aged 14 years had been in a carnal relation with her tenant. The grievance was lodged on behalf of the victim by her parents subsequent to the discovery of her pregnancy.  Upon questioning during the trial regarding the accusation lodged, she admitted she lodged it because the person had declined to tie the knot. However, after the accusation was submitted, the alleged perpetrator made available the offer of marriage, recompense with an amount of Rs 30,000 as well as provide accommodation to her family. She accepted all the terms. They were wedded while the tenant was on bail, and the court saw that the tenant fulfilled his promises, thus he was exonerated of the charges against him. Therefore, through this judgement, we are able to notice that the Court is legalizing wedding of minors instead of penalizing the offender for perpetrating a crime, that is absolutely opposed to the essence of POCSO.
2. Through its judgement in “State v. Ishkar Ahmed 2011 SCC OnLine Del 2800”, the Chandigarh Special Court determined that engaging in a relationship with the plaintiff or engaging in a discussion with complainant shall not provide permission to the defendant to perpetrate the offence of rape or engage in any other implicit sexual activity irrespective of whether he sought her permission if the person is a minor aged under eighteen.  Nevertheless, in circumstances of this nature, the legal principle of “mens rea” ought to be looked at in order to facilitate better decision-making on both the side of the defendant and the plaintiff
3. The POCSO Court in Bombay, while adjudicating the “Satish Ragde vs. the State of Maharashtra (Criminal Appeal no. 161 of 2020)”, decided that stroking a minor’s bosom and disrobing her garment shall not amount to “sexual assault” as defined by Section 7 of the POCSO Act, hence the same shall not punishable under Section 8 of the Act. The judge found that because there was no actual contact between the parties, the act constitutes a non-major violation of Section 354 of the IPC.
4. Previously while adjudicating upon Libnus vs. the State of Maharashtra 2021 SCC OnLine Bom 66, the previous bench clearly stated that “trying to restrain the hand of a 5-year-old girl and unzipping her pants while urging her to sleep with him did not constitute sexual assault under Sections 7, 8 of the POCSO Act”. They justified their stance by reasoning the absence of any real touch between the two parties.  The bench in the apex court of our country initially imposed a stay order on these judgements and ultimately nullified it, asserting that “sexual intent” is necessary for the act to be classified as a sexual assault in accordance with Section 7 and that “skin-to-skin contact” is inconsequential.
5. Non-consensual oral sex is not considered to be “aggravated sexual assault” or “sexual assault” under Sections “5, 6 or 9 of POCSO.” It shall however be considered to be “penetrative sexual assault” under Section 4 of the legislation, according to the findings of the Allahabad High Court in the case “Sonu Kushwaha vs State of Uttar Pradesh 2014 SCC OnLine All 2539.” Currently, the lowest sentence for physically abusing a child less than 10 is seven years in prison. As a result of Section five, all types of explicit attacks on minors below the age of twelve that involve penetration are now considered “aggravated”, making the existing sentence even more severe. The bench improperly categorised the offense and thereby shortened the convicted person’s term, which was in violation of the spirit of the Statute. The Chief Secretary of the Uttar Pradesh was strongly encouraged to file a petition by the NCCR (“National Commission for Child Rights”). This incident demonstrates the requirement of enhanced knowledge as well as sensitivity about the effects of crimes of such nature against teenagers. The sentence reduction for a major violation goes beyond what the law permits, violating the Act’s framework.

REFORMATIVE SUGGESTIONS

From the Protection of Children from Sexual Harassment Act it can be conclusively deduced that the Legislation has the potential to deliver a significant reduction in the multitude of offenses of the nature discussed previously against minors; however, the same shall happen if the bureaucratic and adjudicative framework functions to implement the safeguards in an appropriate and lawful manner. Perhaps certain novel measures must be introduced within the current Legislation in order to prove the assailant’s age when it comes to the documentation that are necessary to be presented. The Legislation is undoubtedly quintessential in its essence with its primary objective being introduction of constructive impact in the upbringing of minors. These modifications intend upon sensitizing minors about crimes of such nature, as well as the necessity of reporting such crimes to the concerned authorities in order to prevent further occurrences to ensure the betterment of the society as a whole.

To overcome the challenges associated with the execution of the legislation including the absence of appropriate special courts, the absence of sensitivity training for detectives and attorneys while interacting with the assailants of such crimes and the insufficient incarceration record, the procedures below must be followed. Prompt compliance is required with the directive given by the apex court of our country which was “There should be establishment of special courts within sixty days of the decision, in each district with more than 100 pending cases under the act”. The legitimacy and applicability of the capital punishment in certain circumstances must be openly studied and contested.

Originally, POCSO did not offer compensation schemes for Minors who were subjected to offences of explicit nature. The apex court of our country paid attention to the omission and directed that sufferer’s be compensated under the “National Legal Service Authority’s Compensation Scheme for Woman Victims/Survivors of Sexual Assault/Other Crimes.” However the problem which arises is that POCSO is gender neutral but the compensation guidelines are female centric and this is a legislative issue which requires redressal.

Everyone’s knowledge and sensitivity upon the matter is crucial for preventing violence. In order to enlighten the populace regarding the legislation and the integrity of children, major public sensitization campaigns must be undertaken. The legislation should also be incorporated into the classroom education. In addition to societal shame and mental anxiety, sufferers of exploitation at the hands of close relatives may become combative out of dread of additional humiliation and stigmatisation. This issue necessitates consideration and welcomes the involvement of many Non-Governmental Organizations to give counselling and satisfy their additional requirements to assure their mentally preparedness to confront their perpetrators during trial and defend their basic rights. In accordance with Section 39 of the Protection of Children from Sexual Harassment Act, community labourers and doctors interacting at close quarters with the assailants or sufferers must adhere to these principles.

In addition to raising social consciousness, it is crucial to monitor the regulations’ application. In addition to expedited tribunals, facilities and judicial competence must be considered. There must be regulatory protections to facilitate execution at grassroot level as well as prompt judicial remedy. Throughout every government facility, appropriate official instruction and a specific minor’s unit must be developed, comparable to the female’s unit.

Here one realizes the fundamental imperative for responsibility at all levels. Numerous people in our country deny acknowledgement of offences of sexual nature being a significant issue that is threatening the nation’s stability. It becomes crucial to accept that the dilemma stems from the current judicial program’s implementation. The sufferer ought to be given immediate health issue related aid and recompense. Remediation of the minor following the horrific situation ought to be covered by the recompense scheme. They must be given an appropriate forum as well as a setting for voicing their opinion about such crimes perpetrated against them.

BIBLIOGRAPHY

1. “Study on Child Abuse: India 2007 – CJP” < https://resourcecentre.savethechildren.net/document/study-child-abuse-india-2007/
2. “Prevention of Sexual Exploitation, Sexual Abuse, and Sexual Harassment” (Conservation International) https://www.conservation.org/about/our-policies/prevention-of-sexual-exploitation-sexual-abuse-and-sexual-harassment
3. “Prominent Cases & Judgements before POCSO” (Aarambh IndiaOctober 20, 2015) < http://aarambhindia.org/prominent-cases-before-after-pocso/
4. “The Convention on the Rights of the Child: The Children’s Version” (UNICEF) < https://www.unicef.org/child-rights-convention/convention-text-childrens-version
5. “Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007” < https://www.indiacode.nic.in/handle/123456789/2079?sam_handle=123456789/1362
6. – L and others, “POCSO Act- Laws and Acts, Case Report, Bail under the Act” (Homepage – Legal News India, Legal News World, Supreme Court -1October 23, 2018) < https://www.lawnn.com/pocso-act/
7. Roy D, “[POCSO] Can Police Probe Offence of Revealing Victim’s Identity Sans Magistrate’s Permission? Supreme Court Bench Divided” (Bar and Bench – Indian Legal news) < https://www.barandbench.com/news/litigation/pocso-can-police-probe-offence-of-revealing-victims-identity-sans-magistrates-permission-supreme-court-bench-divided
8. Network LN, “Limitation Period Cannot Be Extended on Equitable Grounds: Supreme Court” (Live LawMarch 1, 2022) < https://www.livelaw.in/top-stories/supreme-court-condone-delay-limitation-period-equitable-ground-lingeswaran-vs-thirunagalingam-2022-livelaw-sc-227-193074
9. “The Indian Penal Code Arrangement of Sections – Legislative” < https://legislative.gov.in/actsofparliamentfromtheyear/indian-penal-code
10. Rajagopal K, “SC Orders Setting up of Special Courts in Districts with over 100 Pending POCSO Cases” (Return to front page December 3, 2021) < https://www.thehindu.com/news/national/sc-orders-setting-up-of-special-courts-in-districts-with-over-100-pending-pocso-cases/article61591789.ece
11. “Victim Compensation” (National Legal Services Authority June 16, 2020) < https://nalsa.gov.in/services/victim-compensation
12. Rao S, “Sec 7 POCSO – Main Ingredient of Offence of ‘Sexual Assault’ Is ‘Sexual Intent’ and Not ‘Skin to Skin’ Contact : Supreme Court” (Live LawNovember 18, 2021) < https://www.livelaw.in/top-stories/sec-7-pocso-main-ingredient-of-offence-of-sexual-assault-is-sexual-intent-and-not-skin-to-skin-contact-supreme-court-185840

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Idol, in the eyes of law, is a legal entity. A legal entity can sue as well as be sued. Therefore, there are legal consequences attached when someone breaks or either attempts to break an idol. 

Legal Status of an Effigy

Under the Indian Judicial system, Idols have been given the status of a legal person.                            

Section 295 of the Indian Penal Code clearly lays down that, when a person destroys, damages, or defiles any place of worship or objects of worship held sacred, that is an Idol, will be punished with imprisonment which may extend to two years along with a fine.

Legal Consequences when a person Defames the Effigy/Religion

Section 295 A of the IPC addresses situations in which someone intentionally does something that offends a group’s religious feelings by insulting its religious beliefs. Also, if a person knowingly insults the religious beliefs of any class by speaking, writing, or using signs, that person will be penalized by law for a term of up to three years, including a fine.

Therefore, when a person attempts to defame a religious class by defaming the Idol, section 295A of the IPC comes into action.

Disturbing religious assembly is discussed in Section 296. As a result, attempting to shatter or slander the Idol constitutes a disruption to a lawful assembly gathered at the temple for the purpose of prayer. A year in prison or a fine, or both, is the penalty for this offense.

Section 298 of the Indian Penal Code might also apply where a person with the deliberate intention of defaming anyone’s religious feelings, utters words that downtrodden the religious sentiment of that person will be punished by law.

Idol Wing of Tamil Nadu Police

The matter relating to Idol theft is such that Indian states like Tamil Nadu have a separate Idol Wing to look into such matters.

Primary functions of the Idol Wing CID

1. To investigate cases of theft of idols and antiques exceeding the value of Rs 5 Lakhs.
2. To investigate idol theft cases referred by the State Government.
3. To co-ordinate in the investigation of important idol theft cases handled by the District Police
4. Collection of intelligence on nefarious activities of antique dealers and art collectors.

Who Can File a Case?

In incidents of idol breaking or theft, the person submitting the complaint should ideally be the temple, represented by its caretakers, or Trustees, if a trust exists. If no one takes action, any person belonging to the religion of the whole Idol who has been sabotaged may initiate a case under Sections 296 and 298 of the Indian Penal Code.

Recent Judgements

An incident took place in Mumbai where the water began to drip from the feet of the statue of Jesus. A rationalist thinker Sanal Edamaruku analyzed the incident and explained how the water from a nearby blocked drain was dripping from Jesus’ feet by the phenomenon of what is called the capillary action. He was held guilty under Article 295A of the IPC.

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Abstract

This paper speaks with concerning Unnatural Offences & LGBT Community in India. It actually focuses on Homosexuality along with the transformation, the judgments, and the causes against such relations. Moreover, it will throw light upon the LGBT Community that is commonly known as Lesbians, Gays, Bisexuals and Transgender. It will interpret on the Homosexuality on the basis of communal and intellectual reasons. It mainly includes Section 377 of Indian Penal Code, 1860 which describes Unnatural Offences and punishments. Right in the beginning, it discusses the constitutional validity of unnatural offences. Then there comes the LGBT Rights in India along with legal status of homosexuality. Furthermore, it will include the detailed understanding of inequality and hatred against such community in India. There are six religions in India and according to the law all religions are treated equally. But there have been many hardships in India to accept such community.

Key words: unnatural offences, homosexuality, communal, intellectual 

Introduction

Usually, people attract to the opposite sex. That is males are attracted towards females and females attracted towards males. This attraction can be basis of anything that a boy or a girl finds fascinating towards each other. That can be personality, looks, intelligence, emotional attachments and so on. But recently there have been seen, in some cases, that the people are getting attracted to the people with same sex. That is males are getting attracted towards other males and females are attracted with females. This same sex attraction is called Homosexuality and such people are called Homosexuals. Mainly Homosexuals are of two kinds i.e. Gays (male: male) and lesbians (female: female). Other kinds include Bisexuals and Trans- sexual.

• Causes for homosexuality

The causes for someone to become homosexuals are actually genetic. But reasons are not yet absolutely recognized. According to some researchers it can be due to some biological changes that occur in mother’s womb before a child is born. But doctors do not yet confirm these reasons. Some say that a person chooses their sexual orientation after they meet different people of same sex and gets attracted towards them.

• Biological Factors

Some researchers say that it is qualities in the body of oneself that matters the most and decides whether they are homosexual or not. Therefore, it can be due to some heredity aspects as well. But no researches say it confidently.  These are some assumptions made out of the report of researchers.

• Constitution of India

India is a powerful and a developing country having the well-written constitution that is dynamic in nature. It advances according to the needs of the citizens. This is why it not static but dynamic. The constitution of India gives equal rights and protection to each and every citizen of India. The Indian constitution does not discriminate caste, sex, religion and color. Each and every citizen is equal before and under the law.

LGBT Community is in minority and people should understand that these people also have same basic rights like every other citizen in India. Part III of Indian constitution guarantees fundamental rights which every citizen of India has. These are 

• Right to Equality
• Right to Freedom
• Right Against Exploitation
• Right to Freedom of Religion
• Cultural and Educational Rights
• Right to Constitutional Remedies

Yet LGBT community is refused to enjoy these fundamental rights to the fully and are considered separated from their own societies.

Section 377 Of The IPC

One of the important sections in our law system is Section 377 of the Indian Penal Code, 1860 that defines and explains the unnatural offences.
Unnatural Offences: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.”
Explanation: According to this section Penetration is sufficient to complete the bodily intercourse to make the offence.
Therefore, it will constitute to a criminal offence if any copulation conducted against the will of the nature. Consent between two persons with similar sex is inconsequential. In other words, section 377 of the Indian constitution says that no grownups of same sex can indulge into intimacy or copulation that is not satisfactory to the constitution. LGBT communities are demanding to remove this section as it is against the nature and will of our modern society.
Constitutional Validity of Unnatural Offences under Section 377 IPC, 1860
For revoking Section 377 the case was held under Delhi High Court Bhedbhav V Virodi Andolan in 1991. “In its 105-page judgment in July 2009, the Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that Section 377 of the IPC is violated of Article 21 (Right to Protection of Life and Personal Liberty), Article 14 (Right to Equality under the Steady gaze of Law) and Article 15(Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth) of the Constitution.” Therefore, the High Court of Delhi outlawed Section 377 on 02 July 2009.
Controversies in Favor Of Section 377
At that time, many people were of the view that LGBT’s shouldn’t be treated as equal as these people were the exceptions to the society. Many temples of India and even the Muslim Community were against Homosexuality. Several people were of the view that if any copulation is done in between the persons of similar sex then there are high chances they will get infected with sexually transmitted diseases like HIV/AIDS. So, therefore Section 377 should continue in the Indian legal system and should not be decriminalized. Many activists at that time started protesting to continue Section 377 in order to end the LGBT’s from India. Even Baba Ramdev stated that “Homosexuality is a disease and yoga can cure it.”
Controversies against Section 377
There were also people who were in support of LGBT’s and were of the view that Section 377 should be removed from Constitution of India as it contravenes Article 21 Right to Protection of Life and Personal Liberty, Article 14 Right to Equality Before Law and Article 15 Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth of the Constitution.
Various Unions, like People’s Union for Civil Liberties started working on such issues and derived that homosexuals are exploited heavily throughout the nation and police are also involved and liable in such issues. Many police officials threaten and bully Homosexuals and acquire cash on gunpoint from them. Homosexuals were treated like animals from the society as they helpless. Now, there is Protection of Children from Sexual Offences Act (POSCO), 2012 for teenagers and minors. So Section 377 should be excised from the Constitution of India as it includes suffering of life confinement. However, Delhi HC outlawed Section377 but SC upturned ruling in 2013.

LGBTQ Long Battle for rights in India: – 15 Years of Battle

• 2001: – A PIL was filed in Delhi High Court by Naz Foundation for legislation for same sex among consulting adults
  2004: – PIL filed for decriminalization of same sex was dismissed by High Court. After that Gay rights activist filed a case in high court for review of petition. But on November 2004 High Court dismissed the activist review petition. But still Activist reached Supreme Court of India in December 2004 to replace the decision of High Court
  2006: – Supreme Court directed High Court to take a look at the matter again.
  2008: – After the contradictory stand between home ministry and health ministry, Centre takes more time to take stand on the issue.
  On September 2008 Gay Activist contended they have Fundamental Rights to equality and government cannot infringe their rights. But according to Centre gay sex is immoral and reflection of a perverse mind. And its decriminalization would lead to moral degradation of the society.
  2009: – Delhi High Court in July finally legalizes gay sex among consulting adults but Delhi astrologer challenges High Court verdict in apex court.
  2012: – Supreme Court of India begins its final day’s arguments in the case.
  2013: – On December Supreme Court removed the judgment of Delhi High Court which ordered to decriminalized LGBTQ sex. Government filed petitions in Supreme Court to drop gay sex ban.
  2014: – Central Government petition for reviewing supreme court verdict got dismissed by Supreme Court.
  2018: – Finally on September 6, 2018 LGBTQ sex become legal in India under Section 377 of IPC (Indian Penal Code).

Homosexuality Legal Status in India

Supreme Court of India on 24^th August 2017 gave LGBTQ community the freedom to safely express their sexual orientation. Under Right to privacy law an individual sexual orientation is protected. 

6^th September 2018 gay consensual sex was legalized by the apex court. 

In India law section 377 of IPC Identified with homosexuality and it was received by British Penal Code dating till 19^th Century. According to Section 377 of IPC (Indian Penal Code)

Unnatural offences —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Basically on 6^th September 2018 consensual gay sex among adults was legalized by Supreme Court of India. 

Conclusion

India is a country wherein people comply with traditions and customs blindly without understanding that such traditions may be changed in line with the desires of the society. Most importantly, the Constitution of India needs to be revised accordingly as per the rights and desires of the evolving society. Moreover, LGBT Community was given a lift in July 2009 while HC stated that Homosexuality need to be decriminalized.  But the SC court reversed this decision and stated that India isn’t always but prepared for such changes. Even after this, Congress MP Shashi Tharoor proposed a Private Member’s ill in 2015. But the authorities were not taking much interest to pass such bills. Subsequently, many activists such as NS Jauhar and other activists approached the SC who agreed to rethink the issue. The petition claimed that the sexuality, sexual autonomy, desire of sexual partner, life, privacy, dignity and equality are being violated in section 377. Finally, Homosexuality is being decriminalized with the aid of using SC in 2018.

The society of India is continuously changing. People are actually accepting each sort of character whether or not the man or woman consists of in LGBT network or not. So for that, the constitution must additionally get altered according to the humans ignoring a few antique customs and traditions. As the identification of the person matters the most. It does now no longer make any distinction whether or not the person is gay, lesbian or both. If someone is abusing the identity of the person, then he is truly messing up together along with his life.

The post A Study on Unnatural Offences and LGBT Community: the Present Scenario. appeared first on LexForti .

Abstract

Countries, including India, had adopted the Universal Declaration on Human Rights (1948) and the Convention on the Elimination of All Forms of Discrimination to protect women from any kind of violence. India had taken many human rights in their constitution from these documents like the right to equality, life, Freedom of expression, right to marry; the state cannot discriminate based on sex, etc. Violence is the major problem of the world which affects the human right of a woman. It also impacts the mental health of women. 

Domestic violence is one of the significant types of violence. Domestic violence is also called “domestic abuse” or “intimate partner violence.” It means a pattern of behaviour in any relationship used to gain or maintain power and control over an intimate partner. It includes domestic abuse, economic abuse, sexual abuse, and physical abuse. Recently the NCW said that domestic violence cases have been increasing since lockdown. In most domestic violence cases, men are the perpetrator, and women are the victims. The Constitution of India and the legislature have given various laws and protections to women; still, they face domestic violence. 

So the researcher wants to study the concept of domestic violence against women in India, the types of domestic violence face by Indian women, and the consequences of domestic violence on victim’s health. The researcher also analyses the international and national laws on domestic violence and explores how the judiciary protects women from violence. The researcher also does an online pilot study on domestic violence against women in Gurgaon, Haryana, to identify why women face domestic violence? The researcher also takes primary and secondary data to analyse this issue. 

Keywords: Human rights, violence, domestic violence, gender discrimination, economic abuse, sexual abuse, physical abuse

Introduction

Domestic violence against women is not a new concept in society. It means intimate partner violence which includes physical, verbal, sexual, and economic abuse.  According to the world health organization, one in every three women experienced physical or sexual violence in their lifetime, and 30% of women experienced physical and sexual violence from their partners. Women are facing violence from men, which affects their mental health and physical health. In India, women feel unsafe in the marital home. It is because the patriarchal society doesn’t give enough opportunities to women. They are facing violence from husbands, their in-laws, or others. Most of the domestic violence cases don’t report by the woman because of orthodox society and norms. Many women experience various kinds of domestic violence, but they don’t respond to it. Although the countries had adopted a mechanism through which women can file domestic violence complaints against their husbands, they are still not reporting the incidents. 

During this COVID-19, most women lost their jobs which increased the dependency on the husband’s income. Due to this, they are facing physical violence from their husbands. In this economic hardship, female partners have been experiencing rude behaviour, violent, abusive, impulsive, and controlling the behaviour of their male partners. There are many reports which indicate that most women have been facing domestic violence since 2019. It is because the working women are locked in with their male abusive partners. Even they don’t have access to the mobile, nor space and time to call for help. Most domestic violence cases are unreported because of restricted movement, reduced contact with families, unavailability of communication medium, and a formal support system. During this COVID-19, Indian women filed complaints of domestic violence. One thousand four hundred seventy-seven domestic violence complaints were filed by women between March 25 – May 31, 2020. The number of crimes against women is very high in this lockdown. It is because women are locked inside in the home with their abusive partners. They are facing physical, emotional, and domestic abuse from their partners. 

The Parliament of various countries made laws to protect women from any kind of violence. Still, they are facing violence from their husbands and their families.

Types of Domestic Violence

1. Physical violence

It means that the perpetrator uses force against the victim, which causes injury and hurt. The general definition of physical violence is that an act or conduct causing bodily pain, harm, or danger to life, limb, or health—for example, slapping, criminal force, and assault, etc. It also includes sleep deprivation, forced to take drugs or alcohol, deny medical care by their husbands. According to World Health Organisation, 38% of females are murdered by their intimate partners. During pregnancy, women are facing a lot of physical violence in India. 

2. Emotional abuse 

According to the Istanbul convention, psychological violence means the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threat. It includes threats, criticism, separation, public modification, steady personal devolution, controlling behaviour, harassment, verbal abuse, etc. Due to the emotional abuse, women face anxiety, fear, emotional distress, depression, suicidal thoughts, eating disorders, etc. 

3. Sexual assault

According to the world health organization, it means a sexual act, an attempt to obtain a sexual act, and wanted a sexual comment. It includes sexual/reproductive coercion, marital rape, sexual touching or non-physical events, etc. 

4. Economic abuse

Economic abuse is also called financial abuse. It means one partner has control over the other partner’s access to economic resources. During this lockdown, women face economic abuse because they lost their jobs and increased their dependency on the perpetrator’s income. It includes exploiting the resources of victims (valuable things, money, pension books, etc.), forcing or pressurizing the family members of the victims to sell the properties, preventing the victims from obtaining education, etc.    

Consequences of Domestic Violence

Many consequences of domestic violence affect the mental health of the victim. 

a. A physical effect like broken bones, head injuries, internal bleeding, and bruises requires medical care. Pregnant women who are victims of domestic violence have experienced a more significant risk of miscarriage, death of the foetus, pre-term labor pain, etc.

b. Psychological effects include a high amount of stress, fear, anxiety, depression, suicidal thoughts, Post-traumatic stress order, etc.

National and International Laws on Domestic Violence

Domestic violence has been discussed by members of the UN Charter (1945) and the Universal Declaration on human rights (1948). These documents have given various human rights to women and men. 

INDIA:

The Constitution of India has given various rights to its citizens like the right to equality under article 14, prohibition of discrimination on the ground of religion, race, caste, sex, or place of birth under article 15, the state shall make special provisions for women and children under article 15(3), right to life under article 21, etc. 

The legislature enacted the Protection of Women from Domestic Violence Act, 2005, for protecting women from domestic abuse. Domestic abuse includes physical, verbal, emotional, sexual, or economic abuse. The aggrieved party women can file the complaint of domestic violence under this act. The magistrate can pass the protection orders, residence orders, and compensation orders in favour of the victims. 

USA:

In 1983, the US had recognized domestic violence as the worst problem among spouses. It affects the rights and mental health of the female section. 

Congress had passed the violence against women act in 1994. In this act, domestic violence is a national crime. The majority of the crime will handle by the state and local authorities, and this federal law will help them while taking the domestic violence cases. The court can pass the restitution orders to pay the victim’s losses. The accused will pay the cost for medical or psychological care, transportation, physical therapy, temporary housing, childcare expenses, attorney fees, expenditure incurred in obtaining a civil protection order, income loss of the victim, and other losses suffered by the victim.

UK:

The Parliament passed the Domestic Violence, Crime and Victims Act 2004. It gives legal protection and assistance to the victims of the crime, especially domestic violence. Recently Domestic Abuse Act 2021 was passed by parliament to protect the rights of the victim of domestic violence. According to this act, domestic abuse includes abusive behaviour, physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, psychological abuse, etc.

AUSTRALIA:

The legislature passed Crimes (Domestic and Personal Violence) 2007 No 18. This act aims to ensure the safety and protection of all persons facing domestic violence, reduce the crime of domestic violence or abuse, and followed the principles of the Convention on the Elimination of all Forms of Discrimination against Women.

Role of the judiciary for protecting the rights of women from Domestic Violence in India 

The constitution of India has given many powers to the supreme court, high courts, and district court to protect the rights of the people. 

• In S.R. Batra vs. Smt. Taruna Batra, the court held that the wife is only entitled to claim residence in a shared household. The shared home means the house belonging to the husband, or taken on rent by the husband, joint family property in which the husband is the member of that family. 
• In Krishna Bhatacharjee v. Sarathi Choudhury and Another, Supreme Court said that there are some duties or principles followed by the courts while deciding the domestic violence case. 
• In Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Ors., the court said that the husband has a personal obligation to maintain his wife. 
• In V.D Bhanot vs. Savita Bhanot, the Delhi High Court said that even the wife who had shared a household before the domestic violence act came into force would be entitled to protect the domestic violence act. 
• In Indira Sarma vs. VKV Sarma, the Supreme Court said that not all live-in relationships are the relationships in the nature of marriage. For testing the concept of a live-in relationship, courts see the duration of relationship, shared household, domestic arrangements, polling of resources and financial arrangements, sexual relationship, intention, and conduct of the parties, and socialization in public.

A pilot study on Domestic Violence against Women in Gurgaon, Haryana

The researcher did a pilot survey in which 29 participants have participated. All participants are aware of the concept of domestic violence against women. 96.6% of participants said that control, physical abuse, sexual abuse, emotional abuse and intimidation, isolation, verbal abuse fusions, threat, and blame, using male privilege, economic abuse are the kinds of domestic violence. 51.7% of participants said that women are not only the victim of domestic violence, and 27.6% of participants said that the only woman is the victim of domestic violence. 75.9% of participants are aware of women who are the victims of domestic violence. 20.7% of participants said that they had faced domestic violence like hitting, slapping, punching, causing injury. 24.1% said that they had faced domestic violence like pushing, hitting, slapping, punching, causing injury, pulling hairs, etc. 37.9% of participants said that all age groups of women suffer domestic violence. 34.5% of participants said that the number of domestic violence cases against women in Gurgaon increased during Covid 19, and 31% of participants said that the domestic violence cases against women in Gurgaon have not increased during Covid 19. 86.2% of participants said that alcoholism/drugs, the frustration of poverty, relationship with another man, unemployment or underemployed, dowry issues, office frustration are the causes of domestic violence. 93.1% of participants said that anxiety, depression, antisocial behavior, suicidal behaviour in females, low self-esteem, inability to trust others, fear of intimacy, symptoms of post-traumatic disorder, emotional detachment, sleep disturbances, flashbacks, and replaying assault in mind are the consequences of domestic violence on the victim’s health. 72.4% knew about the laws on domestic violence against women. 41.4% of participants said that the victims of domestic violence should go and inform the incident to the families, friends, police authority, social services, non-governmental organizations, and the national commission for movement. 

CONCLUSION AND SUGGESTIONS

The constitution and legislature of India have been giving laws and protection to women since independence; still, women are facing domestic violence from husband families. There is a clear indication in India that matrimonial homes are still unsafe for women. The domestic violence during Covid 19 pandemic has various impacts on the mental health of women. The government has started multiple plans like awareness programs, national news channels, radio channels, and social media platforms that solve domestic violence.  The results of the pilot study show that domestic violence against women is a significant issue in India. Participants have some idea about the concept of domestic violence but do not know about laws. Government, schools, parents, and society are responsible for women’s health which is affected by violence. It is because they didn’t do any awareness programs, medical counseling for victims, etc. It’s time to recognize that women are the victims of severe kinds of violence. 

Suggestions 

1. Society has to understand the importance of the female section. Females have their fundamental rights, which has given by the constitution. The community should have to provide opportunities for women to participate in other work also. 
2. Government should have started a check and balance mechanism to see the proper implementations of laws. 
3. Government should make policies and shelter for the victims of domestic violence.
4. Government should ban those daily soaps which are showing the negative characters of women. 
5. Government and NGOs should also participate in awareness programs like gathering for discussing the laws and policies, talk about how to tackle the domestic violence situations, counselling on mental and physical health, etc.
6. Lawyers and judges are the interpreters of laws. So they should do awareness camps in rural areas to discuss the rules and cures of domestic violence. 

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A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. – Mc Nair, J[1]

Having lived with the pandemic for more than a year now, it is important to recognize that while it has been a disruptive and challenging time for us, we haven’t faced the brunt of it the way the medical fraternity has. While the medical professionals and related staff have worked round-the-clock to manage the crisis, on the other hand, there have been reports of mismanagement, patients being denied due care and medical assistance, and in certain cases, non-observance of safety protocols; ultimately endangering the lives of both healthcare professionals and patients alike. These issues bring forth the topic of medical negligence and the role played by law and judiciary to curb it. This article discusses medical negligence in the context of the Indian legal system in the backdrop of the Covid-19 pandemic.

Understanding Medical Negligence:

The Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab[2] had observed that:

“Negligence is the breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered to his person or property...”

In simpler terms, negligence is failure to exercise due care resulting in injury. However, in the case of medical negligence, a higher degree of care is expected from the medical professional. Thus, the three-fold test to constitute medical negligence is:

1. Existence of duty to care;
2. Breach or omission of such duty and
3. Suffering from injury consequent to such omission or breach.

Upon fulfillment of the three-fold test, civil or criminal liability (in some cases, both) can be fastened on the medical professional and the hospitals. This brings us to another important question: what standards apply to assess the “duty of care” of the medical professionals?

Standard of Care and Bolam Test:

A simple lack of care or error of judgment is not negligence on the part of any medical professional. So long as the doctor follows protocol amenable to the prevailing practice of the medical profession, he cannot be held liable for negligence merely because a better alternative course of treatment was available or because a more skilled doctor would not have resorted to that procedure.

The Hon’ble Supreme Court in Dr. Suresh Gupta vs. Govt. of NCT Delhi[3] held that standard for fastening criminal liability and required medical negligence to convict a doctor must be “a higher degree of morally blameworthy conduct.”

Mere lack of necessary care, attention, or skill was observed to be insufficient to hold one criminally liable for negligence. However, it was observed that lack of a certain degree of care might create civil liability but will not be sufficient to attract criminal liability.

In this case, a young man was stated to have died during the simple procedure for nasal deformity and the prosecution under Section 304A IPC was quashed by the Hon’ble Supreme Court, setting aside the order of the High Court. The view taken by the Apex Court was criticized on the grounds that different standards could not be applied to the conduct of negligence of doctors and others.

Subsequently, the matter was referred to a larger bench in Jacob Mathew vs. State of Punjab[4], which endorsed the approach adopted in Dr. Suresh Gupta[5] that a high degree of negligence is the prerequisite for fastening criminal liability, and it was further observed that:

 “[i]n order to hold the existence of criminal rashness or criminal negligence, it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent.”

The facts of the case were that the oxygen cylinder connected to the mouth of a patient being treated for terminal cancer was found to be empty. The patient succumbed before the replacement could be arranged. The Hon’ble Apex Court set aside the judgment of the High Court and held that the doctors could not be criminally prosecuted.

In the absence of comprehensive guidelines concerning adjudication of medical negligence cases, it is no surprise that the Hon’ble Supreme Court may pass a contrary judgment in the current scenario.

Furthermore, Indian Courts have consistently, in the past, cited the Bolam test as a point of reference to decide medical negligence disputes. The Bolam test was first recognized in an English law case Bolam vs. Friern Hospital Management Committee[6].

In this case, the patient/claimant was not administered a relaxant drug to avoid risking death. However, the claimant suffered a serious fracture as a consequence. The claimant argued that the doctor breached the duty of care by not using the relaxant drugs.

However, it was held that the doctor did not breach the duty of care. The Court held that the medical professional is not negligent if he acted in accordance with the protocol accepted as proper by skilled men exercising and professing to have that special skill, merely because another doctor would have taken a contrary view.

Lately, there has been a shift in the position of the Indian Courts which have highlighted the deficiencies[7] of the Bolam Test and observed to revise the factors[8] set out in the Bolam Test.

Medical Negligence Amidst a Pandemic:

Our legal system has to propound a middle ground between the independence of doctors in taking decisions as per the changing conditions of the patient and the rights of the patient to be treated fairly.

It is an unfortunate fact that Indian medical infrastructure is one of the poorest and the most overstressed in the world[9], especially during the outbreak of the Covid-19 pandemic. Additionally, present circumstances are quite different from that of the ideal scenario.

There have been suggestions that medical practitioners should be temporarily completely absolved from medical negligence in view of the demanding conditions under which the doctors are operating.

However, experts are divided over granting complete immunity to medical institutions as several cases have been reported apart from negligence consisting of mismanagement to the unethical practice of overcharging the patients. It is argued that entangling medical professionals in litigation at a time when they are under immense pressure may lead to demotivation of the community.

Thus, relaxing provisions holding them criminally liable may grant them much-needed breathing space. Another interesting perspective is to explore alternative mechanisms to settle disputes in which the patient can be compensated monetarily to the extent possible.

The challenge is to strike a delicate balance by ensuring the independence of medical professionals, operating under severe resource crunch, in the pandemic stays intact while ensuring the safeguard of a patient’s rights and access to the best possible treatment.

The Way Ahead

Medical negligence litigation is among those grey areas of law that have strong and ardent proponents on both sides. Instead of providing complete legal immunity, a more pragmatic approach of allowing civil liability claims against the negligent doctor must be adopted where they may not be held liable for criminal negligence.

Moreover, a swift and transparent mechanism must be devised by Central and State Governments to decide those civil liability claims. Importantly, comprehensive guidelines laid down by the Hon’ble Supreme Court in consultation with all the stakeholders should be issued for adjudication of the medical negligence cases.

There are no two thoughts about the fact that our medical professionals are giving their all despite facing a serious dearth of vital resources such as medicinal oxygen, life-saving medicines, etc, and in some unfortunate instances have had to face violence.[10] The death of a doctor, during this pandemic, is no less than a soldier being martyred on a battlefield and for their supreme sacrifice, India shall always remain indebted to them.

[1] J Mc Nair, J in Bolam vs. Friern Hospital 1957 1 WLR 582

[2] Criminal Appeal Nos. 144-145 of 2004

[3] Criminal Appeal No. 778 of 2004

[4] Criminal Appeal Nos. 144-145 of 2004

[5] Supra

[6] 1957 1 WLR 582

[7] V Kishan Rao vs. Nikhil Super Speciality Hospital, Civil Appeal No.2641 of 2010

[8] Arun Kumar Manglik vs. Chirayu Health & Medicare Private Ltd. & Anr., Civil Appeal Nos. 227-228 of 2019

[9] https://medicaldialogues.in/india-slips-to-150th-rank-in-healthcare-world-economic-forum

[10] One of the incidents can be read about here: https://www.indiatoday.in/cities/delhi/story/doctors-attacked-in-delhi-hospital-by-family-of-covid-patient-1795567-2021-04-27

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One of the most vital concerns that a legal practitioner is essentially seen to deal with, that is with respect to any particular dispute or one that has arisen out of a legal relationship between the respective parties subsequently brings into consideration the forum which has/will/have the territorial jurisdiction to entertain such a dispute. 

It would be imperative to take into cognizance the concept of jurisdiction which is a conglomeration of two terms, such as juris (meaning “law”) and diction (meaning “to speak”), which can be translated as presuming the appropriate forum that has the potential to “speak the law.” Likewise, the Black Law’s Dictionary has defined the aforementioned term as “a court’s power to decide a case or issue a decree.” In totality, the sole rationale behind introducing such a concept is that each court shall have the liberty to adjudicate and try those matters which tend to fall within the pecuniary or territorial limits of the concerned jurisdiction. The sheer origin of Jurisdiction can be claimed to draw its essence from Public International Law, Constitutional law, the conflict of laws and the powers stipulated in the legislative and executive branches of the government to allocate resources in order to adequately serve the needs of the society. 

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF CIVIL COURTS IN INDIA

It would be pertinent to take into consideration Section 20 of the Civil Procedure Code, 1908 which postulates that a plaintiff has the full freedom and liberty to file a suit in a particular court of law that is within the local limits of the opponent against whom such a claim voluntarily arises, wherein the latter is employed or is witnessed to carry on his/her business. 

Furthermore, the aforementioned provision also stipulates that the suit may also be filed before the court within the local limits of the opponent, wherein a part or the whole of the cause of action is witnessed to arise. That being brought under one’s attention, the cause of action is in general, considered to be facts in context to the relief, claim(s) brought forth by the plaintiff and also gives the said party an opportunity to bring forth a legal action against the said person. In addition to the same, the Civil Procedure Code, 1908 has also ensured to provide that in circumstances where there is more than one defendant, the concerned suit can be instituted in a particular court within whose jurisdiction, the defendant(s) carries on their business or resides. 

Having mentioned the same, it would also be pertinent to note that in circumstances, where the property is witnessed to be situated within the jurisdiction of more than one court, in such a situation, the plaintiff has the liberty to file the concerned suit in either of the courts falling within the jurisdiction of the parties. 

In the case of A.B.C. Laminart Private Limited v. A.P. Agencies Salem, the Hon’ble Supreme Court postulated that the cause of action can be considered to refer to every fact, which if transversed would make it compulsory for the plaintiff to make a proof of his right with reference to the judgement that is passed by the court. 

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF CRIMINAL COURTS IN INDIA

Section 177 of the Code of Criminal Procedure, 1973 plays an exemplary role in ensuring that every offence that is committed within the Indian jurisdiction would be tried and ordinarily inquired before the Court after taking into account the local limits of the offence that has been committed. What makes this provision all the more unique is that this law also stipulates that in cases where the offence is witnessed to consist of several acts, that have been committed in various local areas, in such conditions, the case will be tried and inquired before a particular Court that is witnessed to have jurisdiction over such local areas. 

One would also find it necessary to note Section 188 of the Code of Criminal Procedure, 1973 which bestows the power and jurisdiction to Indian Criminal Courts, wherein if the offence is portrayed to be committed outside India by a non-citizen or an Indian Citizen, committed on aircrafts or on ships that have been registered in India, the accused will then be dealt with regard to the said offence, as if the said offence was in actuality, committed within a jurisdiction falling within India, provided that there has been a sanction acquired from the Central Government. In simpler words, while the police does take cognizance of the concerned offence within India, the trial will under no conditions, proceed without the previous sanction acquired from the Central Government as has been postulated in the aforementioned provision.

It would be essential to note the case of Reg c. Benito Lopez, wherein the issue pertaining to jurisdiction was brought into regard with respect to offences that are committed on the high seas by the foreigners or those travelling to England borne ships. This decision led to the highlighting of several principles of International Law, in which it was contended that an individual irrespective of the place where the crime was committed, is liable to be punished of their offences. 

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF COURTS IN CONTEXT TO MATTERS RELATED TO ARBITRATION

The law under the Indian Arbitration & Conciliation Act, 1996 holds an essential role in defining the concept of a “court” under Section 2(1)(e) wherein the mentioned provision states the very purpose of the Principal Civil Court that functions in a particular district that exercises original civil jurisdiction and is regarded to be competent under the applicable law to exercise jurisdiction in relation to the subject matter of arbitration. In addition to the same, this provision also provides that the Court is inclusive or a High Court of the respective States, but however does not include a particular court that is inferior to a court of Small Causes or a Principal Civil Court. 

This law that has been specified in the Arbitration Act provides that any individual who is aggrieved from a particular arbitration award, or in circumstances where the person wants to challenge the award or in conditions, where it wishes to enforce the award can bring forth an arbitration petition to either the Learned Civil Court or the Hon’ble High Court, in accordance to the stipulated provisions of the Civil Procedure Code, 1908, that has enlisted such rules of original civil jurisdiction. 

Therefore, any particular party with reference to an arbitration agreement can file such an arbitration petition seeking or challenging the enforcement of the arbitration award under the following conditions:

• Either where the defendant carries on business or is seen to reside.
• Where part or whole of the cause of action arises.

If one were to contemplate the essential principles of Arbitration Law, one would ensure to mention the essence of arbitration proceedings which are governed by the Municipal Law of the Seat of Arbitration, in which Section 2(1)(e) is worthy of mention which, as has been elucidated before, has defined the court having jurisdiction pertaining to the “subject matter of arbitration.” The law therefore is witnessed to confer supervisory jurisdiction on the High Court or the Principal Civil Courts within the local limits of arbitration. It would be pertinent to take into cognizance, the case of BALCO v. Kaiser Services, wherein the Apex Court shed light on the aforementioned principle and used the phrase, “subject matter of arbitration.”

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF COURTS PERTAINING TO WRIT PETITIONS IN INDIA

The sheer nature of a Writ Petition brings into account the enforcement of Fundamental Rights that can be brought forth either before the Supreme Court under Article 32 of the Indian Constitution or the High Court under Article 226 of the Indian Constitution.

Article 226(1) of the Indian Constitution for instance, introspects and postulates that the High Court within whose jurisdiction the government, authority, or the individual is located would have the power of jurisdiction to entertain the said writ petition, directed against the defendant, irrespective of the place pertaining to the cause of action, provided that there was in fact, a cause of action to file the mentioned petition.

Furthermore, Article 226(2) of the Indian Constitution, provides that the High Court within whose local limits or jurisdiction a part or the whole of the cause of action is seen to arise shall have the jurisdiction to pass the required order(s) or direction(s), in order to ensure the enforcement of fundamental rights or any other right with respect to the same.

CONCLUDING REMARKS

In totality, it is highly essential to deliberate and get a critical understanding of the concept of jurisdiction, given a misinterpretation of the relevant provisions can culminate to costs and a time-consuming procedure in matters of litigation. Furthermore, it would be imperative to note that in circumstances, where there is an absence of jurisdiction, such a jurisdiction within the respective court/forum/tribunal cannot under any means, be created through a contract between the concerned parties.

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The bench comprising of Chief Justice of India made an observation that examination of accused under Section 313 is not a mere procedural formality, rather works on the principle of fairness and court should take due care and caution while examining accused and recording statements.

The bench stated that the trial court is under an obligation to carry on its duty effectively and examine the accused fairly, while incorporating Section 313 of CrPC.

In the instant case, the bench was hearing an appeal filed by the accused who were convicted under Sections 304B and 306 of Indian Penal Code. The appellants had been convicted by the trial court and were sentenced to undergo rigorous imprisonment for seven and five years, respectively. The apex court upheld the trial court’s judgment.

The bench expressed its concern towards casual behaviour of trial courts while examining accused and observed that Section 313 embodies valuable principle of audi alteram partem and thus the accused should be given an opportunity to explain the incriminating material which had appeared against him.

The bench also discussed about Section 232 of CrPC and observed that if upon recording the evidence placed by prosecution, examining the accused, and hearing the prosecution as well as defence side, the judge considers that evidence is not sufficient to hold the guilt of accused, the judge shall be duty bound to pass an order of acquittal.

The above observations were made by the Supreme Court in the case of Satbir Singh v State of Haryana.

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The affidavit had been filed by the Union Secretary, G.K. Pillai, belonging to Ministry of Health and Family Welfare, wherein they defended Jyoti CNC, manufacturer of defective ventilator machines and claimed that the doctors and other paramedics were not properly trained to handle the machine.

In the instant case, the bench was hearing its suo moto criminal PIL, wherein at least 113 of 150 ventilators, supplied to Marathwada, were found defective. It was also brought before the court that ventilators were rejected when one of the patients became of hypoxic.

During the hearing, the Central Government submitted that 150 ventilators were supplied through Make-in-India and not PM CARES fund.

The bench did not appreciate any of the Centre’s submissions as it focused more on blame game rather than a sensitive behaviour towards the health of citizens, which is one of the main objects of a welfare state.

The bench asked the ministry to refrain from questioning the reports submitted by medical experts, which alleged that the ventilators were defective, and concentrate upon rectifying the machines in order to provide relief to the patients.

The bench time and again asked the central government to put in efforts for making the machines in a working condition and not blame the training skills of hospital staff and paramedics.

The bench asked the Assistant Solicitor General of India to take up further instructions on a fresh report submitted by the dean of Government Medical College. The said report lists out various reasons after which it came to a conclusion that the ventilators were unsafe for patient’s use and that they’ve decided not to conduct further tests of these machines.

The Assistant Solicitor General submitted that Union of India would take up remedial measures to ensure that ventilators operate adequately and any defect, if found, would be removed. The matter has been listed for further directions on June 2, 2021.

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In the instant case, Tarun Tejpal had been alleged to have force himself on his junior colleague, against her consent, inside an elevator of a hotel during a THiNK 13 event organized by a company.

The accused was facing a trial for a number of offences punishable under Indian Penal Code, including Sections 354 and 376. The bench made few observations which have been listed below.

The bench observed that the prosecuterix did not demonstrate a rape victim’s behaviour as the evidences placed before the court showed her being in her normative behaviour after two consecutive nights of alleged sexual assault.

The bench stated that the prosecuterix came to Goa to be a part of THiNK festival and observed that the WhatsApp messages showed her intention of staying back in Goa post the festival not because she had been traumatized by the accused’s behaviour but because she always had plans of staying back in Goa. The bench observed that the prosecuterix claims were false.

The bench went on to make adverse remarks against the victim’s mother and observed that her mother didn’t change her plans after learning about the alleged assault.

 The bench relied upon the WhatsApp messages for this and stated that such circumstantial evidence does not support prosecuterix case and her testimony couldn’t be relied upon without corroboration and hence, appeared as flaw while considering the facts and circumstances.

The bench also pointed out a possibility of doctoring the evidence and the events. Moreover, the counsel on behalf of accused submitted that the evidence placed by the prosecuterix need to be scrutinised from different angles as well.

The bench also held the voluntary communication which had been made by the prosecuterix with the accused after the alleged incident. The bench stated that such voluntary communication initiated by the prosecuterix did not showcase her traumatised behaviour.

The bench held that the prosecution failed to discharge the burden of proving the guilt of accused and thus acquitted the accused. Presently, Goa government has filed a leave to appeal in Bombay HC against the acquittal order.

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The bench also observed that there would be no requirement of custodial interrogation as the statements of petitioner were on record. While accepting the bail application, the bench also took into account the medical condition of petitioner as recently he underwent heart surgery.

The bench allowed petitioner’s appeal against an order passed by Andhra Pradesh High Court which refused to hear his bail application and asked him to approach Sessions Court. The bench stated that the High Court could’ve considered the bail application on merits.

The counsel appearing on behalf of petitioner contended that the petitioner’s statements were merely critical in nature as were made on the actions of State and under no circumstance the same could be termed as sedition and made punishable under Section 124A of Indian Penal Code.

The counsel also argued that the said provision had been included to make the offences non-bailable. The counsel submitted that petitioner had been tortured in the custody and the same could be comprehended from the medical reports.

The respondent counsel, representing the State, contended that SLP does not stand as the petitioner had an alternative remedy of approaching the trial court. The counsel also submitted that the petitioner holds an influential position and his inciteful words bear tendency to mislead the citizens’. The counsel also made a statement- bigger the position, greater the responsibility.

The respondent denied the allegations of custodial violence and added that the injuries reflected in the medical reports might be self-inflicted.

However, the bench granted the bail but imposed a condition upon the petitioner to not give any media interview or make any press statements until the investigation period is over. The bench also directed the petitioner to not influence the witnesses and cooperate with the investigation.

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